E. W. DAVIS, ET AL.,
v.
FIRST NATIONAL BANK & TRUST CO. IN ORLANDO
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The Florida Supreme Court reversed a judgment against two defendants on a joint promissory note because the trial court failed to properly note in the judgment that service had not been obtained on the third joint defendant, as required by statute.
The judgment must be reversed because notation of non-service on the absent defendant is mandatory and must appear in the judgment itself. Strict compliance with the statute authorizing partial judgments in joint actions is essential to avoid reversal on appeal.
“At common law there must be a recovery against all or none of those declared against jointly, unless one defendant has shown a defense personal to himself not affecting the original joint liability.”
Establishes the foundational common law rule regarding joint liability and judgments in joint actions
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Join FLexlaw to unlock all legal intelligenceDavis and others sued First National Bank & Trust Co. and two other defendants on joint promissory notes. The sheriff was unable to serve one of the t…
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In this case judgment on a joint promissory *486note was taken against less than all of the three defendants sued in the present suit and sought to be held liable jointly for the debt represented by the joint notes sued on.
At common law there must be a recovery against all or none of those declared against jointly, unless one defendant has shown a defense personal to himself not affecting the original joint liability. And the plaintiff, while maintaining his suit as a joint action against three obligors on joint notes, cannot sever and take judgment against two only of the three named as joint defendants, except on a strict compliance with Section 4496, C. G. L., 2809 R. G. S. The cited section of the statutes provides that where the sheriff returns that the absent defendant does not reside in the county, the. plaintiff may proceed against the two defendants served, noting the fact of non service on the missing third defendant. Harrington v. Bowman, 106 Fla. 86, 143 Sou. Rep. 651 (on rehearing); Springstead v. Crawfordville State Bank, 63 Fla. 267, 57 Sou. Rep. 668.
Notation of the fact of non-service on the absent defendant should be made to appear in the judgment. This is so because such notation is a part of what the court is required to adjudicate, in order to warrant it in entering its judgment against less than all who have been named as joint defendants in a suit at law on a joint contract. Such notation in the judgment is not only appropriate as a means of saving the judgment from being pleaded in bar of a subsequent action against the absent party in another suit, but since it is made by statute a condition precedent to the right of plaintiff to proceed to any judgment against less than all the defendants sued, strict compliance with the statute is essential to avoid a reversal of the judgment in direct appellate proceedings' brought attacking it by writ of error.
*487The fifth assignment of error raising the objection that notation of non-service on Jones, the missing defendant, was not made to appear in the judgment brought here on writ of error in this' case, must accordingly be sustained, and the judgment reversed for such appropriate procedure as will be in conformity with law.
Reversed for appropriate proceedings.
, Whitfield, Terrell, Brown and Buford, J. J., concur.
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The Keyes Co. v. Sens, 382 So. 2d 1273 (Fla. 3d DCA 1980)…275] diet for the damages should run against all,1 and under the law the jury was not permitted to apportion the compensatory damages among them. Jones v. Griffin, 103 Fla. 745, 138 So. 38 (1931); Davis v. First National Bank & Trust Co. in Orlando, 112 Fla. 485, 150 So. 633 (1933); Kellenberger v. Widner, 159 So. 2d 267 (Fla. 2d DCA 1964); Licen-berg v. Issen, 318 So. 2d 386 (Fla.1975); Moore v. St. Cloud Utilities, 337 So. 2d 982 (Fla. 4th DCA 1976). Fla.Std. Jury Instr. (Civ.) 9.11(b) is designed to so i…
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Roberts v. Seaboard Sur. Co., 158 Fla. 686 (Fla. 1947)…to be rendered against [*700] all defendants actually served without requiring judgment to be rendered against those ■ named as defendants and not served. See Harrington v. Bowman, 106 Fla. 86 and 90, 143 So. 651; Davis v. First National Bank, etc., 112 Fla. 485, 150 So. 633. We have repeatedly held that where the action is brought as a joint action against several defendants the judgment must be against all defendants sued jointly unless the provisions of Sec. 55.06 supra, are strictly complied with. Dogg…
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Alderman v. Camilla Puleston, 156 Fla. 731 (Fla. 1945)…vember 1944 final judgment was entered against Alderman and Catherine A. Pursley. This appeal was from the final judgment. On July 10, 1945 a majority of the court affirmed the final judgment on authority of Davis v. First National Bank of Orlando, 112 Fla. 485, 150 So. 633, (hereafter referred to as the Davis case). A minority of the court thought the final judgment should have been reversed on authority of Harrington v. Bowman, 106 Fla. 86, 143 So. 651, (hereafter referred to as the Harrington case). On…1 / 2
Authorities Cited
- Harrington v. Bowman, 106 Fla. 86 (Fla. 1932)
- Springstead v. The Crawfordville State Bank, 63 Fla. 267 (Fla. 1912)